Re Perry - [2021] QSC 97

SUPREME COURT OF QUEENSLAND

CITATION:

Re Perry [2021] QSC 97

PARTIES:

CATRIONA MAY BURKE

(Applicant)

FILE NO/S:

SC 80 of 2021

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:
Supreme Court at Cairns

DELIVERED EX TEMPORE ON:

26 March 2021

DELIVERED AT:

Cairns

HEARING DATE:

26 March 2021

JUDGE:

Henry J

ORDER:

1. The time for making the application for rectification is extended to today.

2. Pursuant to s 33(1) Succession Act 1981, the will of Michael John Perry of 10 October 2019 is rectified by adding to clause 1 after the words “previously made by me” the words “except for my wills of 13 September 2018 and 21 September 2018”.

3. A certified copy of this order is to be attached to the will of Michael John Perry of 10 October 2019, pursuant to s 33(4) Succession Act 1981.

CATCHWORDS:

Succession Act 1981 (Qld), s 33(1), s 33(2), s 33(3)

Dillon v Henderson [2018] QSC 236, cited
Rose v Tomkins [2018] 1 Qd R 549; [2017] QCA 157, cited

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTEMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – where the deceased had three operative wills which each related to assets held in the United Kingdom, Thailand and Australia respectively – where a clause of the Australian will revoked ‘all former wills’ – where the deceased plainly did not intend to revoke the two wills relating to assets held in the United Kingdom or Thailand – whether the Australian will should be corrected by declaration – whether the Australian will should be corrected by for rectification – whether the Australian will did not carry out the testator’s intentions because it did not give effect to the testator’s instructions

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the oral application for rectification was filed two months out of time – where the applicant initially sought a declaration rather than rectification – where the matter involved overseas deponents and records which were delayed by COVID-19 travel restrictions – whether the court should allow the applicant an extension of time to make an application for rectification

COUNSEL:

C Burke (sol) for the applicant

SOLICITORS: Smithfield Law for the applicant

HENRY J: This application, at least as filed, sought a declaration, calculated at remedying the unintended effect of the will of Michael John Perry made in Australia on 10 October 2019, hereinafter referred to as the Australian will. Clause 1 of that will revoked all former wills.
The difficulty which has arisen is that Mr Perry, who is now deceased, plainly did not intend to revoke two other wills of his, relating to assets held in the United Kingdom and Thailand. He had made a will in Thailand on the 13^th of September 2018. He gifted a condominium to his daughter, Chayanud Perry, and the residue of his estate to his partner, the mother of his daughter, Pathichaya Yotchutuukan. His partner was already the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Perry

Details

AGLC: Re Perry [2021] QSC 97
Case: [2021] QSC 97
Decision Date: 26 March 2021

CaseChat Overview and Summary

The case of Re Perry involved the interpretation and rectification of the will of Michael John Perry, who had passed away. The deceased had executed three wills, each pertaining to assets in different jurisdictions: the United Kingdom, Thailand, and Australia. The central dispute revolved around the interpretation of the Australian will, which contained a clause revoking all prior wills. The primary legal question before the court was whether this clause should be understood to revoke the two overseas wills, as well as whether the Australian will should be rectified to reflect the deceased’s true intentions.

The court examined whether the Australian will accurately reflected the deceased’s intentions, given that it appeared to inadvertently revoke the overseas wills, which the deceased had no intention of revoking. The applicant, seeking rectification, initially requested a declaration instead, and the application was filed beyond the statutory time limit due to delays caused by the COVID-19 pandemic. The court needed to decide whether to grant an extension of time for the application and whether rectification was appropriate to correct the Australian will to better align with the deceased’s intentions.

In reaching its decision, the court allowed an extension of time for the application for rectification, taking into account the exceptional circumstances caused by the pandemic. The court also found that the Australian will did not carry out the deceased’s intentions as it did not reflect his instructions regarding the overseas wills. Consequently, the court rectified the Australian will by adding an exception for the two overseas wills, ensuring they remained operative. The court’s final orders included extending the time for the rectification application, rectifying the Australian will to exclude the overseas wills from the revocation clause, and requiring a certified copy of the order to be attached to the will.

Orders

Orders of the court

1. The time for making the application for rectification is extended to today.

2. Pursuant to s 33(1) Succession Act 1981, the will of Michael John Perry of 10 October 2019 is rectified by adding to clause 1 after the words “previously made by me” the words “except for my wills of 13 September 2018 and 21 September 2018”.

3. A certified copy of this order is to be attached to the will of Michael John Perry of 10 October 2019, pursuant to s 33(4) Succession Act 1981.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Re Perry [2021] QSC 97
PARTIES:	CATRIONA MAY BURKE (Applicant)
FILE NO/S:	SC 80 of 2021
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED EX TEMPORE ON:	26 March 2021
DELIVERED AT:	Cairns
HEARING DATE:	26 March 2021
JUDGE:	Henry J
ORDER:	1. The time for making the application for rectification is extended to today. 2. Pursuant to s 33(1) Succession Act 1981, the will of Michael John Perry of 10 October 2019 is rectified by adding to clause 1 after the words “previously made by me” the words “except for my wills of 13 September 2018 and 21 September 2018”. 3. A certified copy of this order is to be attached to the will of Michael John Perry of 10 October 2019, pursuant to s 33(4) Succession Act 1981.
CATCHWORDS:	Succession Act 1981 (Qld), s 33(1), s 33(2), s 33(3) Dillon v Henderson [2018] QSC 236, cited Rose v Tomkins [2018] 1 Qd R 549; [2017] QCA 157, cited SUCCESSION – CONSTRUCTION AND EFFECT OF TESTEMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – where the deceased had three operative wills which each related to assets held in the United Kingdom, Thailand and Australia respectively – where a clause of the Australian will revoked ‘all former wills’ – where the deceased plainly did not intend to revoke the two wills relating to assets held in the United Kingdom or Thailand – whether the Australian will should be corrected by declaration – whether the Australian will should be corrected by for rectification – whether the Australian will did not carry out the testator’s intentions because it did not give effect to the testator’s instructions PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the oral application for rectification was filed two months out of time – where the applicant initially sought a declaration rather than rectification – where the matter involved overseas deponents and records which were delayed by COVID-19 travel restrictions – whether the court should allow the applicant an extension of time to make an application for rectification
COUNSEL:	C Burke (sol) for the applicant
SOLICITORS:	Smithfield Law for the applicant